Riparian Rights and the 'Hedge and Ditch' Rule

Hedge and Ditch Rule

There is a legal boundary presumption when it comes to drainage ditches and hedges;

“"No man, making a ditch, can cut into his neighbour’s soil, but usually he cuts it to the very extremity of his own land: he is of course bound to throw the soil which he digs out, upon his own land; and often, if he likes it, he plants a hedge on top of it.” Stemming from the case of Vowles v Miller (1810).

The presumption only applies to agricultural and where the two properties are divided by a hedge and a ditch. The principle is that the property boundary is presumed to be on the opposite edge of the ditch from the hedge. If the hedge appears to belong to you within the legal title, it is presumed that you will also own the ditch on the other side.

Drake v Fripp (2011) – this case reiterated the LR practice note 40 which states ‘The great majority of land in England and Wales is registered with general boundaries only. As a result, it is not possible to identify the position of the legal boundary from the register of title and title plan.’ This is why the common law presumptions are in place. Parmar v Upton (2015) – the Court of Appeal have confirmed the continuing relevance of the Hedge and Ditch rule in relation to boundaries.

Riparian Rights:

If you have an ordinary watercourse (including a drainage ditch) running through your land or along the boundary of your property, you have certain rights and responsibilities as a ‘riparian owner’.

If the watercourse is running in or along the edge of your land you are likely to be a sole or joint riparian owner (unless you know the watercourse to be owned by someone else). As a joint riparian owner, you are presumed to own up to the middle of the watercourse along with your neighbour.

Under Flood and Water Management Act 2010 and The Land Drainage Acts of 1991 and 1994 the legal responsibilities of owning a watercourse include;

• Not to obstruct, pollute or divert the flow
• Accept the flood flows through your land
• Maintain the bed and banks and clear any debris, natural or otherwise
• Not to obstruct the passage of fish
• Keep the bed and banks clear of anything that could cause an obstruction
• Keep any structures clear, such as mill gates
• Protect your property from seepage through natural or man-made banks
• Along with these responsibilities, you also have certain rights which include;
• Right to receive flow of water without influence
• Right to protect your property from flooding and land from erosion
• Rights to fish (by legal methods)
• The right to abstract a max 20 cubic metres of water a day for domestic or agricultural purposes

Although the hedge and ditch presumption will apply to agricultural land only, there are many examples of a hedge and ditch boundary surviving the development of a houses on one, or either side of it. If a boundary dispute should arise between two properties that stand one either side of this former agricultural hedge and ditch, then the presumption is usually still applied.

Internal Drainage Boards:

IDB’s are a type of local authority that manage the water levels in England where there is a special need for drainage due to flooding. They undertake works to reduce flood risk and manage water levels. They have permissive powers to manage water levels within their drainage district and they are able to regulate the use of the watercourses and enforce the riparian rights of owners through their set bylaws. They are appointed under the Flood & Water Management Act 2010.

When deciding if this applies you will need to establish whether your land is under an IDB.

An IDB has the authority to scrutinise any new development in their drainage districts and make comments on the planning applications to ensure developments are suitably mitigate the flood risk of each new development.

IDB’s work alongside your rights as a riparian owner and essentially mean they because there is a bigger risk of any drainage ditch becoming a flood risk, they have powers to step in and enforce your rights to maintain the ditch as well as the power to undertake works to reduce the flood risk.

Works and alterations to a watercourse:

If you wish to carry out any alterations to a watercourse other than general cleaning and routine maintenance, you will need consent from your regulating body under s23 Land Drainage Act 1991. This must be secured before going ahead with any such works.